137Powers of Visiting Justice in relation to offences by prisoners

1. Every Visiting Justice has power to hear any complaint relating to any offence against discipline alleged to have been committed by a prisoner, and may examine any person concerning the alleged offence on oath or otherwise at his or her discretion.

2. Every hearing and examination must be in the presence and hearing of the prisoner charged with the offence, who is entitled to be heard and to cross-examine any witness.

3. If, at any hearing under this section, the Visiting Justice finds the offence proved, he or she may impose 1 or more of the following penalties:

4. forfeiture or postponement of all or any privileges for any period not exceeding 3 months:
5. forfeiture of earnings for any period not exceeding 3 months:
6. confinement in a cell for any period not exceeding 15 days.

7. The Visiting Justice must take into account the prisoner's circumstances before imposing any forfeiture or postponement of privileges under subsection (3)(a).

8. If the offence proved is—

9. any offence against section 128(1), 129, 130, or 131, the Visiting Justice may, after giving the prisoner an opportunity to provide reasons why the order should not be made, and whether or not he or she imposes a penalty under subsection (3), order that any article or thing used to commit the offence or in respect of which the offence was committed be forfeited to the Crown:
10. an offence against section 128(1)(h), the Visiting Justice may, whether or not he or she imposes any penalty under subsection (3), order that a specified amount (not exceeding the lesser of the value of the damage to, or loss of, property involved or $500) be withdrawn or withheld from the earnings payable under section 66 or section 67 and credited to the prisoner:
11. an offence against section 130(1) or (2), the Visiting Justice may, after giving the prisoner an opportunity to provide reasons why the order should not be made, and whether or not he or she imposes any penalty under subsection (3), order the forfeiture to the Crown of any specified amount not exceeding $500 from earnings payable under section 67 and credited to the prisoner.

12. Instead of imposing any penalty under subsection (3) or (4) in relation to an offence that has been proved, the Visiting Justice may order that—

13. the prisoner appear for a hearing for the imposition of any penalties in relation to the offence if the prisoner is called to appear; and
14. the prisoner be called to appear only if the prisoner commits a subsequent offence against discipline within a period set out in the order that does not exceed 3 months beginning on the day the order is made.

15. However, if the offence proved is the subsequent offence described in subsection (4A), the Visiting Justice may not make an order under subsection (4A) in respect of the subsequent offence.

16. Despite subsections (3), (4), and (4A), if the case was referred to the Visiting Justice for hearing under section 134(2)(b) or section 135(3), the Visiting Justice may only impose 1 or more penalties under section 133(3) or (4), or both, or make an order under section 133(4A), unless—

17. the case was also referred to the Visiting Justice for hearing under section 134(2)(a) or (c); or
18. the Visiting Justice considers that the case could have been referred to him or her for hearing under section 134(2)(a), instead of under section 134(2)(b) or section 135(3); or
19. the offence proved was the subsequent offence described in section 133(4A), in which case the Visiting Justice may not make an order under section 133(4A) in respect of the subsequent offence.

20. If the Visiting Justice considers that, in the circumstances of the case, the prisoner should be charged before a court with an offence (other than an offence against section 128, section 129, or section 130) instead of being dealt with under this section, the Visiting Justice may, at his or her discretion, at any time before making a decision as to whether the charge is proved,—

21. decline to proceed with the hearing; and
22. request the appropriate authority to prosecute the prisoner and forward with the request a summary of the Visiting Justice's reasons for making that request.